Where the State expropriates a right to the land of another co-owner in a sectionally owned co-ownership relation with one parcel of land, the subject of expropriation and thereafter, where co-owner exercises a redemptive right, the subject of repurchase (=ownership for a specific part of one parcel of land)

Where the ownership transfer registration is made by specifying a part of one parcel of land, and the ownership transfer registration is mutually nominal registration as to the part other than the specific part of the land. The right holder can acquire ownership only for the specific part in the internal relationship and use and profit-making exclusively from it. As to the obstruction of another sectional owner, if the State has sectionally owned ownership with regard to one parcel of land, the co-owner may acquire ownership for the specific part in the relationship with the State, and use and profit-making exclusively from it. In such a situation, if another co-owner expropriates the right holding one parcel of land due to military necessity, etc., the subject of expropriation is not the co-ownership of one parcel of land, but the ownership for the specific part of the first parcel of land. Meanwhile, the subject of repurchase is the same as the subject of repurchase right to one parcel of land, which is determined differently from the subject of repurchase right by the State under Article 5(1) of the Ordinance on Special Measures for National Security, but can not be seen as the subject of repurchase right to one parcel of land.

Articles 103 [title trust], 211, and 262 of the Civil Act; Article 39(1) of the Decree on Special Measures for Expropriation and Use of Land in Areas to be mobilized under Article 5(4) of the Act on Special Measures for National Security

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Lee Jong-soo and 1 other, Counsel for plaintiff-appellant)

Daeyang Industrial Co., Ltd. and 3 others (Law Firm Square, Attorneys Go Won-seok et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Seo Young-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na19873 decided December 16, 2009

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the second ground for appeal

The court below is just in taking measures to include the amount of comprehensive real estate holding tax on each of the lands of this case in the necessary expenses in calculating the fees in a method of calculating the fees by adding the expenses necessary for the continuous lease of the lands to the amount calculated by multiplying the expected interest rate by the price of each land of this case, and there is no error of law by misunderstanding legal principles or incomplete hearing as argued in the Grounds for Appeal. The ground for appeal on this part

2. Regarding ground of appeal No. 1

A. The transfer registration of ownership is mutually nominal registration of part of a parcel of land: Provided, That where the transfer registration of ownership is made with respect to the whole parcel of land, the ownership transfer registration of the part other than the specific part is mutually nominal. The right holder can acquire ownership only for the specific part in the internal relationship, and use or benefit from it. The right holder can seek exclusion from ownership based on ownership (see, e.g., Supreme Court Decision 93Da42986, Feb. 8, 1994). If the State has sectionally owned co-ownership relation with the land of one parcel of land as above with another, the co-owner can acquire ownership of the specific part of the parcel of land in the relationship with the State, and use or benefit from it exclusively. In such a situation, if another co-owner expropriates the right of co-owner with respect to the land of one parcel of land by military necessity, etc., the subject of expropriation is not the right of co-owner to repurchase and sale of one parcel of land but the ownership of one parcel of land within the area subject to expropriation and use.

B. According to the facts established by the lower court and the evidence duly admitted by the Defendant: (a) the deceased was to purchase and sell the land from the deceased on the ground of the title transfer registration for 1972 to 3 years; (b) the deceased was to acquire from the Defendant each of the land indicated on the deceased’s first instance judgment (hereinafter “the deceased’s own land”). (c) the Defendant continued to use the land under the title of 13 pieces of land owned by the Defendant and the deceased on the ground of the title transfer registration for 9 years on the premise that each of the instant land was purchased from the deceased’s 19-year unit on the ground that the deceased’s land was purchased on the ground of the title transfer registration for 19-year unit; and (d) the deceased was to use the land under the title of 19-year unit on the premise that each of the instant land was purchased on the ground of the title transfer registration for 9-year unit on the ground that the land was owned by 9-year unit on the ground of the title transfer registration for 9-year unit on the land.

C. Examining this in light of the legal principles as seen earlier, at the time of December 8, 1972, the deceased and the defendant agreed on sectional ownership of co-owned land of this case, and as long as co-ownership was registered in the name of the deceased and the defendant, the sectional co-ownership relation was established. In addition, the property expropriated by the deceased on or around April 197 is not the co-owned share of the land of this case, but the specific part of the land owned by the deceased, the divided ownership of which is the land of this case. After the deceased exercised the right of repurchase on May 8, 1979, the settlement of this case was established in the Supreme Court through the repurchase lawsuit, and on February 26, 1991, the sale registration of co-owned land of this case was completed on May 8, 1979 (exercise of the right of repurchase) and there was no special agreement between the parties, the lower court should have maintained the sectional ownership relation between the deceased and the remaining part of the land of this case.

Nevertheless, the court below calculated user fees on each of the lands of this case on the premise that the plaintiffs and the defendant were in a general co-ownership relationship, and ordered the payment of user fees on each of the lands of this case according to the plaintiff's co-ownership. In such a case, the court below erred by failing to exhaust all necessary deliberations and by misapprehending the legal principles on the establishment of sectionally owned co-ownership relationship, which affected

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)